People v. Butler

BAXTER, J,, Concurring.

The forfeiture rule for sentencing error is a judicially created doctrine invoked as a matter of policy to ensure the fair and orderly administration of justice. (People v. Scott (1994) 9 Cal.4th 331, 351 [36 Cal.Rptr.2d 627, 885 P.2d 1040].) Today, the court has chosen not to prevent a defendant from challenging an HIV testing order imposed under Penal Code section 1202.1 for the first time on appeal where the defendant asserts that the order is unsupported by probable cause to believe that bodily fluids capable of transmitting HIV have been transferred from the defendant to the victim. At the same time, the majority cautions that “nothing in our analysis should be construed to undermine the forfeiture rule of People v. Scott, supra, 9 Cal.4th 331, that absent timely objection sentencing determinations are not reviewable on appeal, subject to the narrow exception articulated in People v. Smith (2001) 24 Cal.4th 849 [102 Cal.Rptr.2d 731, 14 P.3d 942].” (Maj. opn., ante, at p. 1128, fn. 5.) I join in both conclusions and write separately only to make explicit what is implicit in the majority opinion.

Thus, despite our ruling today, it remains the case that other sentencing determinations may not be challenged for the first time on appeal, even if the defendant claims that the resulting sentence is unsupported by the evidence. This includes claims that the record fails to demonstrate the defendant’s ability to pay a fine (e.g., People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072 [130 Cal.Rptr.2d 133]; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469 [33 Cal.Rptr.2d 217]; People v. McMahan (1992) 3 Cal.App.4th 740, 750 [4 Cal.Rptr.2d 708]; see generally People v. Scott, supra, 9 Cal.4th at p. 352, fn. 15), that the record fails to support the imposition of the upper term or consecutive terms (e.g., People v. De Soto (1997) 54 Cal.App.4th 1, 8 [62 Cal.Rptr.2d 427]; see People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311 [28 Cal.Rptr.2d 172]; Scott, supra, 9 Cal.4th at p. 357, fn. 19), that the record fails to support the probation conditions imposed (e.g., People v. Welch (1993) 5 Cal.4th 228, 236 [19 Cal.Rptr.2d 520, 851 P.2d 802]; In re *1131Abdirahman S. (1997) 58 Cal.App.4th 963, 969-971 [68 Cal.Rptr.2d 402] [drug and alcohol testing condition]), and that the record fails to support the requirement that the defendant register as a sex offender (e.g., People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061 [120 Cal.Rptr.2d 687]). All of these cases are consistent with Scott’s observation that “claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Scott, supra, 9 Cal.4th at p. 354, italics added.) A “narrow exception” to this general rule exists only for “obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings.” (People v. Smith, supra, 24 Cal.4th at p. 852.)

Our decision today also confirms that, except for HIV testing ordered under Penal Code section 1202.1, we generally will not extend the rules governing challenges to the factual sufficiency of criminal convictions or civil judgments to challenges to the factual sufficiency of orders made at sentencing. As the Court of Appeal has explained, “[a] challenge to the sufficiency of evidence to support the imposition of a restitution fine to which defendant did not object is not akin to a challenge to the sufficiency of the evidence to support a conviction, to which defendant necessarily objected by entering a plea of not guilty and contesting the issue at trial.” (People v. Gibson, supra, 27 Cal.App.4th at pp. 1468-1469.)

With this understanding, I join in the judgment.

Chin, J., concurred.